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Tuesday, November 10, 2009
 
University Presidents are Not "Powerless" to Control Coaches' Salaries

USA Today's latest study released today on college coaches' compensation reveals that at least 25 college head football coaches are making $2 million or more this season, which is slightly more than double the number two years ago, and the average pay for a head coach in the 120-school Football Bowl Subdivision is up 28% in that time and up 46% in three years, to $1.36 million. Two weeks ago, the Knight Commission released its survey of bowl-subdivision university presidents in which 85% of the respondents said they felt football and basketball coaches' compensation "was excessive" as well as "a key contributor to the (fiscal) 'arms race' in intercollegiate athletics" and "the greatest impediment to sustainability."

With the end of the football season approaching and, hence, the beginning of the coach solicitation season, the timing is ripe to announce my new law review article on this subject titled, The Coaching Carousel in Big-Time Intercollegiate Athletics: Economic Implications and Legal Considerations. The paper will be published in the coming weeks in the Fordham Intellectual Property, Media and Entertainment Law Journal and can be downloaded off SSRN here. I take an extensive look at the economics surrounding college coaches' contracts and the reasons for rising coaches' salaries, and then use the economics to tackle the legal question that everyone avoids like the plague, which is what can schools do about it?

From a legal standpoint, it is astonishing that schools routinely solicit and steal coaches who are under contract with another school and that these solicited coaches are free to breach their contracts with limited or no repercussion. This is not representative of free market competition, but rather unfair competition. It would be like the Cowboys soliciting Tom Brady to breach his contract with the Patriots, and even worse, the Patriots then allowing Brady to breach his contract with them. The professional leagues have "no tampering" rules that prohibit this tortious interference and the Patriots would have no qualms whatsoever about using judicial means to prevent Brady (via a negative injunction) from playing for the Cowboys. Indeed, the NFL even has a no tampering policy with respect to its coaches.

The NCAA should consider adopting a "no tampering" policy (i.e. an anti-solicitation rule) similar to the NFL's no tampering policy which essentially prohibits teams from soliciting coaches under contract. In my paper I also explain why schools are entitled to equitable relief in the form of a negative injunction to prevent their coaches from jumping ship, and there is even precedent for it specifically in the context of enforcing college coaches' contracts.





7 Comments:

Looking forward to reading this article. Could not agree more with what you say. I live for the day when a hero steps forward...some college president who "takes back" control of athletic corporations (departments) and brings some sense to the equation EVEN IF it means alumni and others do not accept putting the hammer down. Enough is enough already, this is outrageous and we all know it--but we need a hero. A true hero. Who will it be???

Anonymous Anonymous -- 11/10/2009 2:03 PM  


http://www.insidehighered.com/news/2009/11/11/tenure. Powerless, eh?

Anonymous Anonymous -- 11/11/2009 8:36 AM  


I'm not sure I would say that there are limited to no repercussions for coaches who breach contract early. It seems like several big time coaching changes involved lengthy and expensive disputes over buyouts (Rodriguez and Saban), and while at the end of the day these may not hit the coaches hard financially, the schools will feel an effect either way (either getting the buyout or paying it) and the coach may take a PR hit. Perhaps schools should start creating more strict liquidated damage or alternate performance clauses in their contracts

Blogger Jeremy -- 11/11/2009 5:48 PM  


While I agree with what you say, nothing is going to win until donors to schools' football programs stop controlling the football programs. Athletic directors need to get the victories to keep the money flowing from alumni and whoever else is willing to support the program, and if that means overpaying for top name coaches, so be it.

Blogger Dylan Murphy -- 11/12/2009 12:03 AM  


It's interesting that everyone here is so pro-University/anti-employee. I guess that's because many are teachers at Universities. My initial question is whether Cailfornia schools would be subject to such an NCAA non-solicitation policy.

Second, you're basically advocating that assistant coaches not be able to move up by accepting a head coaching position at another school. That is, unless their contract just happens to be up, and/or his employer consents.

Third, it is the rare case in which a court finds an employee so unique that the judge will permit a negative injunction in the employment context (i.e., prohibiting an employee under contract from switching jobs). Maybe there are a few coaches for whom this would be a plausible argument, but for the most part it wouldn't. Recognizing this, schools have taken the buy-out route as the most appropriate (and enforceable) remedy.

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